New laws to support the more flexible use of premises in England were made on 30 July 2020 and will come into force on 1 September 2020. As part of Government plans to ‘radically reform’ the planning system, sweeping amendments to the Town and Country Planning (Use Classes) Order 1987 (“the Order”) will enable many more changes of use to be made without the need for planning permission. My colleague Nicola Cotton and I consider these below.
In recent years, the tendency has been for amendments to be made to the Town and Country Planning (General Permitted Development)(England) Order 2015 (“GPDO”) to allow for specified changes of use between use classes. This has included changes such as office to residential use. The Order itself has for the most part remained stable, but there has been ongoing debate over recent years about whether it is outdated given the need to revitalise high streets and the demand for more flexible working spaces.
The most significant change now being made relates to commercial, business and service uses. Buildings including shops over 280m2 (Class A1), offices (A2/B1b), restaurants or cafés (A3), research or light industrial facilities (B1b/B1c), health centres or nurseries (D1), gyms or indoor sport centres (D2) will all now fall under the new, overarching Class E. This means changes between these types of uses will not need planning permission.
This new flexibility is good news for landlords; it means they can make the most of the market forces that shape what premises can offer, although leases may need to be reviewed to ensure they are fit for purpose. Local planning authorities (LPAs) are likely to have concerns that their ability to achieve a desired mix of uses will be reduced. This is not limited to the high street as many may first perceive and will also apply to out of town proposals. LPAs will, however, continue to exercise their influence over pubs, takeaways, cinemas, concert venues and night clubs. These premises will now join the list of sui generis uses (‘in a class of their own’) which cannot be changed without express planning permission.
Two further use classes will also be introduced: F.1 (learning and non-residential institutions) includes schools, museums, libraries, exhibition spaces, places of worship and law courts and F.2 (local community uses) includes small shops (not more than 280m2 selling mostly essential goods), community halls or meeting places, swimming pools, skating rinks and outdoor sports facilities (not involving motorised vehicles or firearms). Changes within the new Use Class F1 and F2 will not need planning permission but changes between them will unless further revisions are made to the GPDO to authorise this.
It is important to note that there will be a ‘material period’ from 1 September 2020 to 31 July 2021, during which any references in the GPDO to the uses or use classes specified in the Schedule to the Order are to be read as if the existing uses/classes still applied. References to the Schedule of the Order in the context of prior approval applications, or Article 4 Directions made by a Local Planning Authority to remove permitted development rights are similarly to be read in terms of the ‘old’ use classes. This means that the changes will not become live in that context until 1 August 2021 and care will need to be taken to ensure it is clear where they do apply before that date.
Finally, all use changes will still be subject to existing planning conditions and obligations, as well as to the terms of restrictive covenants and leases. As can sometimes be overlooked, where external building alterations are needed in order to convert to a proposed new use, separate planning permission will also need to be obtained.
In addition to these novel changes, the Government also introduced an amendment to the GPDO on 20 July 2020, which is due to come into force on 31 August 2020. This introduces a new Class ZA to allow the demolition of a single detached block of flats, offices (B1(a), research and development (B1(b) and industrial (B1(c) or any combination of them and the construction of a detached block of flats or purpose built dwelling house together with associated operations.
Class ZA is subject to a long list of conditions including that it does not apply if the footprint of the original building exceeds 1,000 metres, has been vacant for 6 months or if the height of the new building would exceed 7 metres or 2 stories above the original building or 18 metres above ground. Comprehensive prior approval is also required including for design, ensuring adequate natural light to habitable rooms, landscaping and the amenity of residents including overlooking, privacy and light. It is interesting to compare the scope of this permitted development right with Class O which allows the change of use of an office to residential use but does not allow any operational works to take place, meaning that those seeking prior approval tend to submit a follow up planning application for works. The result is that the list of conditions and prior approval matters is much shorter for Class O. This has led to criticism about the quality of converted offices, and new Class ZA appears to have been drafted with that in mind.
These changes will give owners greater flexibility within planning as to the use or uses of their property. We anticipate, particularly given the current circumstances in light of COVID, that owners of office blocks will be appraising options for redevelopment, both in considering Class ZA redevelopment in comparison to Class O later this year, and diversifying under Class E in 2021. In cases where planning permission is still needed, it is also likely that these changes will be relied on in demonstrating the fall-back position of what could be developed if a slightly different scheme is proposed.
We look forward to seeing the guidance relating to both statutory instruments, which has been promised later this year. This should set out how Government envisages these changes will help both the economic recovery and shape of our communities.
Use Classes (Amendment) (England) Regulations 2020: These Regulations amend the Town and Country Planning (Use Classes) Order 1987, revoking Parts A and D and creating new use classes in relation to England.